Brain tissue at crux of Lundy decision

One of the law lords described it as a "revelation" and it jolted one of the key planks in the Crown case against Mark Lundy.

Just before the three-day appeal against his convictions began at the Privy Council in London, a report was given to Lundy's legal team, headed by Kiwi expat David Hislop, QC.

Eleven years after Lundy's jury trial in Palmerston North, the report had never been seen by any of his lawyers. It contained neuropathologist Dr Heng Teoh's opinion about the reliability of human tissue samples taken from a polo shirt found in Lundy's car.

Dr Teoh thought the samples had degenerated to such an extent that Lundy, now 54, should not be convicted on the tissue evidence alone.

The Crown argued that the officer in charge of the murder inquiry, Detective Inspector Ross Grantham, had mentioned talking to Dr Teoh in a notebook entry supplied to the trial defence team, so was not "suppressing" the information.

At the trial, defence expert witnesses did not question the science used to identify the tissue as brain matter. Mr Hislop said such a "concession" should not have been made.

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"While that concession is understandable, one would, at the very least, raise an eyebrow, especially if [defence lawyer Mike Brehrens, QC] was armed with Dr Heng Teoh's report."

THE CROWN CASE

The jury that convicted Lundy in 2002 took less than seven hours to return its guilty verdicts.

In doing so the six men and six women, after hearing seven weeks of evidence, agreed that on August 29, 2000, Lundy must have been down Wellington way for business and somehow made his way home.

His daughter Amber, 7, was to have Pippins that night, but that was cancelled. She and her mother Christine, 38, Lundy's wife of 17 years, bought McDonald's for dinner at 5.43pm.

By then Amber had already called Lundy on his cellphone, about 5.30. He spoke to Christine too in an eight-minute call which phone records show he made from the Petone area.

The Crown said Lundy told Christine, a night owl, to forget about watching Shortland Street and get to bed for sex. He then hit the road on a whirlwind 150-kilometre-long northern dash.

At 6.56pm Christine had a "short . . . very to the point" phone conversation with a friend.

Shortly after, the Crown said, Lundy arrived at their Karamea Cres home, killed Christine and then killed Amber too when she got out of bed to investigate.

Time of death was about 7pm, maybe as late as 7.15.

Pathologist Dr James Pang concluded the deaths happened an hour and 10 minutes after the pair ate. He based his findings on their stomach contents.

The Crown said Lundy staged a break-in, cleaned up and ran to his car. At some stage he tampered with the home computer to make it look like it shut down at 10.52pm.

Witness Margaret Dance, who attracted sniggers in the court when she spoke of her psychic powers, reported seeing a hefty man dressed in a wig running near the corner of Rhodes and Hillcrest Drives.

Lundy jumped in his car and sped back to Petone, where cellphone records place him at 8.28.

The Crown said paint flecks found in Christine and Amber's wounds matched the orange and blue paint Lundy used to mark his tools.

He was also linked to the scene by two spots of human tissue found on the polo shirt, along with Christine's DNA.

Texan pathologist Rodney Miller used a technique known as immunohistochemistry, or IHC, to identify the human tissue as brain matter. He had tested this technique on a chicken.

"Little did the chicken know that she would be contributing greatly to putting a guilty man behind bars," Dr Miller has written.

Later on August 29, Lundy called a prostitute about 11.30. He was with her for about an hour.

The Crown said this was a cynical attempt at creating an alibi.

THE DEFENCE

Mr Behrens and fellow lawyer Steve Winter did not question Dr Pang's conclusions about the time of death.

Rather they concluded that Mr Lundy could not have done it in the time frame argued by the Crown.

Instead of questioning Dr Miller's evidence, the defence said the brain matter got on Lundy's shirt through contamination, possibly deliberately.

The High Court also heard evidence that lights were seen on at the Lundy house about 11pm.

"That light was not on in the morning. Who turned it off?" asked Mr Behrens in his closing speech to the jury. He called Ms Dance's evidence unreliable, saying her memory seemed to improve with the aid of press coverage.

The jury didn't agree.

Late on March 20, 2002, the trial was over and police involved with the case and the Crown prosecutors left the courthouse to cheers from 35 people gathered outside.

Lundy was sentenced to a minimum 17 years in jail, subsequently increased by the Court of Appeal to 20 years.

He is due for parole in early 2021.

THE APPEAL

Lundy's small and dedicated group of supporters continued working behind the scenes and through their public website Factual (For Amber and Christine - Truth Uncovered About Lundys), which discusses doubts about the case.

In 2009, Lundy's then legal team announced an appeal was "imminent". Nothing happened for three years until Mr Hislop filed Privy Council appeal papers last November. In February, law lords said they would hear the case.

During the three-day hearing in June, the Crown stood by the verdicts.

Mr Hislop questioned Dr Miller's science. His IHC identification method had never been used in that way before. In fact it was so rare the defence team could only find one other example of its use in a criminal matter.

Experts consulted by Mr Hislop thought the technique was nothing more than an experiment, and statements from experts Kevin Gatte, Phillip Sheard and Helen Whitwell said the tissue was in too poor a state to be identified.

Other experts cast doubt on Dr Pang's stomach contents conclusions and evidence from police computer analyst Maarten Kleintjes that Lundy had tampered with the computer.

Mr Hislop said the computer could have been affected by a virus.

He repeated Mr Behrens' concerns about Ms Dance's evidence and said the motive put by the Crown - that Lundy was in financial difficulty and murdered to claim insurance money - didn't stack up.

That one of Lundy's tools might have been used as a murder weapon - which has never been found - did not place him at the scene. There was also a palm print found at the house that has never been identified.

THE VICTIMS

Christine Weggery, who was born on May 1, 1962, started going out with Mark Lundy about 1980. They married in 1983 and a decade later their child, Amber Grace, was born. She was in year 2 at Roslyn School.

Christine and Mark were well known in Palmerston North's theatre scene and were members of the Manawatu Wine Club.